Thursday, 31 May 2018
Fronleichnam
Märpel wishes a pleasant holiday to all residents of Bavaria. The weather is superb, enjoy your day!
Tuesday, 29 May 2018
Nothing can be said to be certain, except death and taxes
Märpel shall come back to AT-ILO in a next article, but she was shortly presented with breaking news about the EPO finances.
The EPO owns lots of money. The operating surplus is about 350 millions Euros every year, and this is after paying for one of the most expensive building in Holland. The EPO cash reserves are over 2.3 BILLIONS Euros.
Märpel is not surprised. Tightening salaries, stopping all investment in training and forcing your staff to output 40% more patents while keeping fees unchanged must yield some effects. The EPO swims in money, literally.
Actually, Märpel notes that the EPO budget is world readable on https://www.epo.org/modules/epoweb/acdocument/epoweb2/289/en/CA-50-17_Add._1_B_en.pdf There are a few gems in that document, maybe someone should host a public copy just in case?
President Battistelli has decided he needed a blank check to play with that money on the stock and derivatives market. Apparently he did not learn about the toxic loans of Saint-Germain. Or maybe he knows them too well, Märpel cannot say. Usually money lost in risky investments is not lost for everybody.
The Council, in its rubber-stamping majesty, decided to approve the new investment guidelines last December. Lately the budget and finances committee cleared the small details. Interested readers having access to the EPO intranet may look for document CA/F 10/18.
Märpel finds difficult to believe what that document says. Apparently, the EPO is going to set aside "around 250 millions Euros" every year in the next 20 years and expects that the total treasury will reach EUR 12 billions Euros after a period of 20 years, which is lots of money even for cats. The expected long term return on the modelled portfolio is 4,0% and the annual risk is 15,1% of the Net Assets Value, which Märpel understands to mean that the EPO will invest in relatively high risk assets to get that level of return. Märpel's compound interests calculator also notes that the figures do not match, unless the EPO would also invest its complete cash reserve in that risky scheme (2.3 billions Euros). But then with what money shall the EPO be run, salaries paid, etc? Märpel also notes that up to 75% can be invested in risk investments (equities, commodities, real estate and "alternatives"), which probably explains the 4% annual return in times when one is lucky to get 0.5%.
Nobody knows what the EPO is going to do with 12 billions Euros in 20 years. If the scheme succeeds (and that is a big "if"), the next-next-next-next President is going to have lots of money to play with. Or will he?
Märpel also notes that the whole scheme is going to be operated under German law by a Master-Kapitalverwaltungsgesellschaft (which is also regulated by German law). Now, that is interesting.
A particularity of German law is that the EPO is not always as immune to it as it wishes. In particular, the EPO found that the Bundesfinanzhof (the highest court responsible for taxes) can be particularly unimpressed by its immunities. Lately it decided that EPO pensions are taxable in Germany and decided so over a technicality: that the pension reserve fund was under control of the EPO president:
"Um das Versorgungssystem durch die Bildung von angemessenen Rücklagen zu sichern, hat die EPO im Rahmen ihrer Gesamtfinanzierung u.a. einen Reservefonds für Pensionen (im Folgenden: Reservefonds) gebildet (Art. 2 Abs. 2 des Statuts der Reservefonds für Pensionen und soziale Sicherheit der EPO - Reservefonds-Statut -). Der Fonds bildet ein zweckgebundenes Sondervermögen der EPO, besitzt aber keine eigene Rechtsfähigkeit. Er wird vom EPA verwaltet (Art. 2 Abs. 1 Reservefonds-Statut). Die Mittel des Fonds werden vom EPA durch Zuweisungen aus dem Haushalt der EPO gebildet. Sie sind getrennt vom übrigen Vermögen der EPO zu verwalten (Art. 3 Abs. 1 Reservefonds-Statut). Die Anlagen des Fonds werden für die Zwecke des Statuts so behandelt, als seien sie Vermögen des Fonds; sie bleiben jedoch stets Vermögen der EPO (Art. 3 Abs. 5 Reservefonds-Statut). Der Haushaltsplan der EPO weist in seinem Teil I das "Hauptbudget" und in Teil II das "Versorgungs- und Sozialversicherungssystem Budget" aus." ("besitzt aber keine eigene Rechtsfähigkeit" = "is not legally independent"). Probably the EPO pensioners would save on taxes if President Battistelli had let the pension reserve fund be independent, but this is not the subject of this post.
Back on the subject of the new investment scheme. Märpel notes that the EPO is exempt from taxes in Germany because of the PPI (protocol on privileges and immunities) signed with the FR of Germany. But the PPI does not foresee that the EPO plays in the stock market. Neither does the European Patent Convention, see Articles 37: "budgetary funding", 39 "The Organisation's own resources" and 40 "Level of fees and payments". And the EPO starts an investment company under German law, managed by a German Kapitalverwaltungsgesellschaft. Who wants to bet with Märpel that the Bundesfinanzhof finds out that the 12 billions Euros will be taxable in Germany?
Märpel also notes that the only delegate who voted against the project came from Germany. Is Germany not interested in taxes on future earnings or did Germany realise that the earnings may not be as projected?
In any case, the project is unknown in the history of civil service. Public institutions do not normally get to play on the stock and derivatives market. Märpel also reminds you that it is YOUR money, the EPO got it to actually do the work of thoroughly examining patents.
The EPO owns lots of money. The operating surplus is about 350 millions Euros every year, and this is after paying for one of the most expensive building in Holland. The EPO cash reserves are over 2.3 BILLIONS Euros.
Märpel is not surprised. Tightening salaries, stopping all investment in training and forcing your staff to output 40% more patents while keeping fees unchanged must yield some effects. The EPO swims in money, literally.
Actually, Märpel notes that the EPO budget is world readable on https://www.epo.org/modules/epoweb/acdocument/epoweb2/289/en/CA-50-17_Add._1_B_en.pdf There are a few gems in that document, maybe someone should host a public copy just in case?
President Battistelli has decided he needed a blank check to play with that money on the stock and derivatives market. Apparently he did not learn about the toxic loans of Saint-Germain. Or maybe he knows them too well, Märpel cannot say. Usually money lost in risky investments is not lost for everybody.
The Council, in its rubber-stamping majesty, decided to approve the new investment guidelines last December. Lately the budget and finances committee cleared the small details. Interested readers having access to the EPO intranet may look for document CA/F 10/18.
Märpel finds difficult to believe what that document says. Apparently, the EPO is going to set aside "around 250 millions Euros" every year in the next 20 years and expects that the total treasury will reach EUR 12 billions Euros after a period of 20 years, which is lots of money even for cats. The expected long term return on the modelled portfolio is 4,0% and the annual risk is 15,1% of the Net Assets Value, which Märpel understands to mean that the EPO will invest in relatively high risk assets to get that level of return. Märpel's compound interests calculator also notes that the figures do not match, unless the EPO would also invest its complete cash reserve in that risky scheme (2.3 billions Euros). But then with what money shall the EPO be run, salaries paid, etc? Märpel also notes that up to 75% can be invested in risk investments (equities, commodities, real estate and "alternatives"), which probably explains the 4% annual return in times when one is lucky to get 0.5%.
Nobody knows what the EPO is going to do with 12 billions Euros in 20 years. If the scheme succeeds (and that is a big "if"), the next-next-next-next President is going to have lots of money to play with. Or will he?
Märpel also notes that the whole scheme is going to be operated under German law by a Master-Kapitalverwaltungsgesellschaft (which is also regulated by German law). Now, that is interesting.
A particularity of German law is that the EPO is not always as immune to it as it wishes. In particular, the EPO found that the Bundesfinanzhof (the highest court responsible for taxes) can be particularly unimpressed by its immunities. Lately it decided that EPO pensions are taxable in Germany and decided so over a technicality: that the pension reserve fund was under control of the EPO president:
"Um das Versorgungssystem durch die Bildung von angemessenen Rücklagen zu sichern, hat die EPO im Rahmen ihrer Gesamtfinanzierung u.a. einen Reservefonds für Pensionen (im Folgenden: Reservefonds) gebildet (Art. 2 Abs. 2 des Statuts der Reservefonds für Pensionen und soziale Sicherheit der EPO - Reservefonds-Statut -). Der Fonds bildet ein zweckgebundenes Sondervermögen der EPO, besitzt aber keine eigene Rechtsfähigkeit. Er wird vom EPA verwaltet (Art. 2 Abs. 1 Reservefonds-Statut). Die Mittel des Fonds werden vom EPA durch Zuweisungen aus dem Haushalt der EPO gebildet. Sie sind getrennt vom übrigen Vermögen der EPO zu verwalten (Art. 3 Abs. 1 Reservefonds-Statut). Die Anlagen des Fonds werden für die Zwecke des Statuts so behandelt, als seien sie Vermögen des Fonds; sie bleiben jedoch stets Vermögen der EPO (Art. 3 Abs. 5 Reservefonds-Statut). Der Haushaltsplan der EPO weist in seinem Teil I das "Hauptbudget" und in Teil II das "Versorgungs- und Sozialversicherungssystem Budget" aus." ("besitzt aber keine eigene Rechtsfähigkeit" = "is not legally independent"). Probably the EPO pensioners would save on taxes if President Battistelli had let the pension reserve fund be independent, but this is not the subject of this post.
Back on the subject of the new investment scheme. Märpel notes that the EPO is exempt from taxes in Germany because of the PPI (protocol on privileges and immunities) signed with the FR of Germany. But the PPI does not foresee that the EPO plays in the stock market. Neither does the European Patent Convention, see Articles 37: "budgetary funding", 39 "The Organisation's own resources" and 40 "Level of fees and payments". And the EPO starts an investment company under German law, managed by a German Kapitalverwaltungsgesellschaft. Who wants to bet with Märpel that the Bundesfinanzhof finds out that the 12 billions Euros will be taxable in Germany?
Märpel also notes that the only delegate who voted against the project came from Germany. Is Germany not interested in taxes on future earnings or did Germany realise that the earnings may not be as projected?
In any case, the project is unknown in the history of civil service. Public institutions do not normally get to play on the stock and derivatives market. Märpel also reminds you that it is YOUR money, the EPO got it to actually do the work of thoroughly examining patents.
Thursday, 24 May 2018
Suicide is painless, it brings on many changes
As Märpel noted in the previous post, the 125th session of the ILOAT published in January was so successful for the EPO that Laurent Germond, Director Employment Law, published a glowing report on the EPO intranet.
Right after judgment 3971, the report continues with another judgment concerning a staff representative: "Staff representation and respect of the ServRegs and the standards of conduct"
Laurent Germond continues:
"In Judgment No 3968, the Tribunal confirmed that staff representatives are not immune and must abide by provisions of the ServRegs and the standards of conduct. The case related to the death of an EPO employee concerns Ms E.H., at that time staff representative, who forwarded to a SUEPO distribution list, a copy of the letter written on 5 June 2012 by the Munich local section of the SUEPO and the Munich Staff Committee to the President, with an accompanying email where she wrote that "most of us believe that the behaviour of [the deceased staff member's] (previous) manager and the unfounded attacks by PD4.3 (culminating in a disciplinary procedure) have contributed significantly to his death."
The Tribunal considered that the President of the Office, while disregarding the opinion of the Disciplinary Committee, was fully justified to apply a severe sanction - downgrading - to this staff representative. "Indeed, sending in full knowledge to a large group of persons an email containing accusations likely to highly damage the name and reputation of a staff member does constitute such a failure." The Tribunal concluded that Ms E.H. "acted carelessly, with regard to a very sensitive subject, conscious of the probability that her statement would highly offend other staff members and would create great unrest among colleagues, damaging the work environment." It further emphasised her refusal to present any apologies and the serious consequences of her behaviour on the health of the manager. Her complaint against an alleged institutional harassment was also dismissed."
The text of judgment 3968 can be found here:
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3968&p_language_code=EN
There are so many problems with this judgement that Märpel does not know where to start. Maybe she should simply start with the facts: someone committed suicide and Mrs Elisabeth Hardon, who had dealt with that person as a staff representative, was understandably upset. She was all the more upset because it was the second suicide under the same manager. Judgment 3968 fails to mention that "detail", although the tribunal was certainly informed by the defendant.
After that suicide Mrs Hardon send an E-mail to an internal SUEPO distribution list were she stated as follows:
"[...] most of us believe that the behaviour of [the deceased staff member's] (previous) manager and the unfounded attacks by PD4.3 (culminating in a disciplinary procedure) have contributed significantly to his death. [...] Formally the Office will of course deny any guilt. But we hope that this letter will contribute to an internal discussion and maybe some lessons will be learnt."
(This is the text, verbatim, from judgement 3968.)
Märpel finds that text to be a rather measured response to a double suicide. Mr A., the manager of the two deceased persons, considered that single e-mail harassment.
Harassment has always been a difficult subject at the EPO, so difficult that the definition of harassment was the subject of several circulars. Märpel understands that Mrs Hardon was found guilty under the terms of a circular published after the facts (point 8 of judgement 3968).
Actually, Mrs Hardon was NOT found guilty, twice. VP4 wrote to that effect on 13 July 2012 (point 4 of judgement 3968) and the disciplinary committee wrote a report to the same effect on 28 January 2014 (point 8 of judgement 3968). But President Battistelli found otherwise and decided to downgrade Mrs Hardon.
Judgement 3968 confirmed the sanction. Most striking is point 18: "Consistent case law holds that the executive head of an international organisation is not bound to follow a recommendation of any internal appeal body nor bound to adopt the reasoning of that body". Märpel understands that AT-ILO is satisfied that President Battistelli can strike any staff member he wants, with complete disregard for internal disciplinary bodies.
Isn't there a problem with that?
Mrs. Hardon was dismissed later and for another case of "harassment" (that time a single word and not an email). She was dismissed together with another SUEPO official, Ion Brumme. A third SUEPO official, Malika Weaver, was downgraded. The 3 cases are planned for the next session of AT-ILO, right in time for President Battistelli end of contract bonus and inventor of the year event. Timing is everything. Märpel hates to predict the future, but her contacts in the 7th floor of the Isar building told her that the celebrations shall not be spoiled. It is a little known fact that the Office receives AT-ILO judgements before official publication.
Märpel does not predict the future, but she can talk about the past and the past explains everything. In the next article.
Right after judgment 3971, the report continues with another judgment concerning a staff representative: "Staff representation and respect of the ServRegs and the standards of conduct"
Laurent Germond continues:
"In Judgment No 3968, the Tribunal confirmed that staff representatives are not immune and must abide by provisions of the ServRegs and the standards of conduct. The case related to the death of an EPO employee concerns Ms E.H., at that time staff representative, who forwarded to a SUEPO distribution list, a copy of the letter written on 5 June 2012 by the Munich local section of the SUEPO and the Munich Staff Committee to the President, with an accompanying email where she wrote that "most of us believe that the behaviour of [the deceased staff member's] (previous) manager and the unfounded attacks by PD4.3 (culminating in a disciplinary procedure) have contributed significantly to his death."
The Tribunal considered that the President of the Office, while disregarding the opinion of the Disciplinary Committee, was fully justified to apply a severe sanction - downgrading - to this staff representative. "Indeed, sending in full knowledge to a large group of persons an email containing accusations likely to highly damage the name and reputation of a staff member does constitute such a failure." The Tribunal concluded that Ms E.H. "acted carelessly, with regard to a very sensitive subject, conscious of the probability that her statement would highly offend other staff members and would create great unrest among colleagues, damaging the work environment." It further emphasised her refusal to present any apologies and the serious consequences of her behaviour on the health of the manager. Her complaint against an alleged institutional harassment was also dismissed."
The text of judgment 3968 can be found here:
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3968&p_language_code=EN
There are so many problems with this judgement that Märpel does not know where to start. Maybe she should simply start with the facts: someone committed suicide and Mrs Elisabeth Hardon, who had dealt with that person as a staff representative, was understandably upset. She was all the more upset because it was the second suicide under the same manager. Judgment 3968 fails to mention that "detail", although the tribunal was certainly informed by the defendant.
After that suicide Mrs Hardon send an E-mail to an internal SUEPO distribution list were she stated as follows:
"[...] most of us believe that the behaviour of [the deceased staff member's] (previous) manager and the unfounded attacks by PD4.3 (culminating in a disciplinary procedure) have contributed significantly to his death. [...] Formally the Office will of course deny any guilt. But we hope that this letter will contribute to an internal discussion and maybe some lessons will be learnt."
(This is the text, verbatim, from judgement 3968.)
Märpel finds that text to be a rather measured response to a double suicide. Mr A., the manager of the two deceased persons, considered that single e-mail harassment.
Harassment has always been a difficult subject at the EPO, so difficult that the definition of harassment was the subject of several circulars. Märpel understands that Mrs Hardon was found guilty under the terms of a circular published after the facts (point 8 of judgement 3968).
Actually, Mrs Hardon was NOT found guilty, twice. VP4 wrote to that effect on 13 July 2012 (point 4 of judgement 3968) and the disciplinary committee wrote a report to the same effect on 28 January 2014 (point 8 of judgement 3968). But President Battistelli found otherwise and decided to downgrade Mrs Hardon.
Judgement 3968 confirmed the sanction. Most striking is point 18: "Consistent case law holds that the executive head of an international organisation is not bound to follow a recommendation of any internal appeal body nor bound to adopt the reasoning of that body". Märpel understands that AT-ILO is satisfied that President Battistelli can strike any staff member he wants, with complete disregard for internal disciplinary bodies.
Isn't there a problem with that?
Mrs. Hardon was dismissed later and for another case of "harassment" (that time a single word and not an email). She was dismissed together with another SUEPO official, Ion Brumme. A third SUEPO official, Malika Weaver, was downgraded. The 3 cases are planned for the next session of AT-ILO, right in time for President Battistelli end of contract bonus and inventor of the year event. Timing is everything. Märpel hates to predict the future, but her contacts in the 7th floor of the Isar building told her that the celebrations shall not be spoiled. It is a little known fact that the Office receives AT-ILO judgements before official publication.
Märpel does not predict the future, but she can talk about the past and the past explains everything. In the next article.
Saturday, 19 May 2018
International Lost-judgements Organization
The 125th session of the ILOAT published in January was so successful for the EPO that Laurent Germond, Director Employment Law, published a glowing report on the EPO intranet.
The report opens with judgment 3971: "Ensuring the well-functioning of the EPO Internal Appeals Committee (former IAC)"
Laurent Germond continues:
"In Judgement No 3971, the Tribunal confirmed the decision of the President to discipline for serious misconduct and to downgrade a former member of the ApC, Mr A.P., appointed by the Central Staff Committee, who obstructed the work of the Committee. The Tribunal considered in particular that "the complainant's refusal to attend the IAC hearings and sessions was particularly onerous for the Organisation considering the heavy backlog of internal appeals that the IAC needed to confront." "
The text of judgment 3971 can be found here:
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3971&p_language_code=EN
Märpel notes that Mr. Germond knows the jurisprudence of AT-ILO as he wrote his thesis and a book on the subject. He therefore cannot ignore that AT-ILO used to balance the interests of the employers with the particular needs for protection of the staff representatives. If you have a copy of Laurent Germond's "Les principes généraux selon le tribunal administratif de l'O.I.T", check pages 160-170. He therefore should be surprised of the stark departure from that jurisprudence in that judgment.
The events concerning Mr Aurelien Petiaud are known from all the EPO. They took place in 2014. At the time, Mr Petiaud found it necessary to protest the way the appeal committee was run under President Battistelli's orders. It was run as a purely rubber-stamping affair and since the members chosen by staff were in minority, cases were lost. Mr Petiaud protested and took a courageous decision: on each case he took the time to write a minority opinion (see judgment point 16), thereby documenting the malfunctioning of the committee.
President Battistelli was not amused and simply increased the workload to a point where there was no time to write these opinions and still attend the sessions. Mr Petiaud refused and publicly explained why he took that decision, in agreement with SUEPO. To all EPO staff, it was clear that this was a political message and not a refusal to carry out his duties.
But AT-ILO found differently. Märpel may only wonder at what the "L" in "ILO" stands for. It used to stand for "labour".
The report opens with judgment 3971: "Ensuring the well-functioning of the EPO Internal Appeals Committee (former IAC)"
Laurent Germond continues:
"In Judgement No 3971, the Tribunal confirmed the decision of the President to discipline for serious misconduct and to downgrade a former member of the ApC, Mr A.P., appointed by the Central Staff Committee, who obstructed the work of the Committee. The Tribunal considered in particular that "the complainant's refusal to attend the IAC hearings and sessions was particularly onerous for the Organisation considering the heavy backlog of internal appeals that the IAC needed to confront." "
The text of judgment 3971 can be found here:
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3971&p_language_code=EN
Märpel notes that Mr. Germond knows the jurisprudence of AT-ILO as he wrote his thesis and a book on the subject. He therefore cannot ignore that AT-ILO used to balance the interests of the employers with the particular needs for protection of the staff representatives. If you have a copy of Laurent Germond's "Les principes généraux selon le tribunal administratif de l'O.I.T", check pages 160-170. He therefore should be surprised of the stark departure from that jurisprudence in that judgment.
The events concerning Mr Aurelien Petiaud are known from all the EPO. They took place in 2014. At the time, Mr Petiaud found it necessary to protest the way the appeal committee was run under President Battistelli's orders. It was run as a purely rubber-stamping affair and since the members chosen by staff were in minority, cases were lost. Mr Petiaud protested and took a courageous decision: on each case he took the time to write a minority opinion (see judgment point 16), thereby documenting the malfunctioning of the committee.
President Battistelli was not amused and simply increased the workload to a point where there was no time to write these opinions and still attend the sessions. Mr Petiaud refused and publicly explained why he took that decision, in agreement with SUEPO. To all EPO staff, it was clear that this was a political message and not a refusal to carry out his duties.
But AT-ILO found differently. Märpel may only wonder at what the "L" in "ILO" stands for. It used to stand for "labour".
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Monday, 14 May 2018
A judge and no legal system
The decisions concerning Mr. Corcoran can be found here:
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3958&p_language_code=EN
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3960&p_language_code=EN
Interestingly, they do not decide anything. They simply notice that the President had a conflict of interest and that the procedure was therefore flawed. They explicitly say that the decisions on the compatibility of the dismissal procedure with Article 23 of the EPC (independence of the members of the boards of appeal) are not final.
Märpel notes with surprise that this is the first time AT-ILO does not summarily dismiss a request on a decision which is not final. Märpel also notes with surprise that AT-ILO makes no mention that the only procedure to discipline a member of the boards involves the Enlarged Board of Appeal. The same Enlarged Board of Appeal who, on June 10th 2016 published that President Battistelli violated judicial independence. Merpel reported on that extraordinary event here:
http://ipkitten.blogspot.de/2016/06/enlarged-board-publishes-decision-epo.html
This is also the only place where the words of the Enlarged Board of Appeal can be found, as the EPO neglected to publish it.
Basically, AT-ILO failed to actually revise the procedure in these decisions. Mr.Corcoran stays in legal limbo and Märpel does not have the faintest idea of what is supposed to happen next. Probably nothing.
The EPO did not publish anything about these decisions, but they published a glowing report on the next session (the 125th session, published in January) and especially about 2 further decisions also concerning Mr. Corcoran. The decisions can be found here:
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3961&p_language_code=EN
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3959&p_language_code=EN
Judgment 3961 concerns President Battistelli publication of the details of the pending proceedings against Mr. Corcoran in the EPO and in the press. AT-ILO finds that "the complainant has no right to request the initiation of an investigation against another staff member". The complaint is dismissed. Basically, the decision implies complete immunity of EPO officials: they cannot be fought in external tribunals and Judgment 3961 also makes it clear that they cannot be fought in the EPO internal justice system either.
Judgment 3959 concerns the confiscation of a private USB stick. AT-ILO finds the complaint to be irrecevable and cites earlier judgment 3958: "the process of decision-making involves a series of steps or findings which lead to a final decision. Those steps or findings do not constitute a decision, much less a final decision. They may be attacked as part of a challenge to the final decision but they themselves, cannot be the subject of a complaint to the Tribunal."
Märpel wonders what "final decision" is possible in the present case. The only disciplinary court for boards members is the Enlarged Board of Appeal and it already rendered an opinion and another is not planned. The Administrative Council was content in their December session that the matter had been settled. These judgments from January set the road free for AT-ILO to summarily dismiss whatever complaints may have been additionally filed, yet there is no indication that a decision on the substance of the case will ever be taken.
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3958&p_language_code=EN
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3960&p_language_code=EN
Interestingly, they do not decide anything. They simply notice that the President had a conflict of interest and that the procedure was therefore flawed. They explicitly say that the decisions on the compatibility of the dismissal procedure with Article 23 of the EPC (independence of the members of the boards of appeal) are not final.
Märpel notes with surprise that this is the first time AT-ILO does not summarily dismiss a request on a decision which is not final. Märpel also notes with surprise that AT-ILO makes no mention that the only procedure to discipline a member of the boards involves the Enlarged Board of Appeal. The same Enlarged Board of Appeal who, on June 10th 2016 published that President Battistelli violated judicial independence. Merpel reported on that extraordinary event here:
http://ipkitten.blogspot.de/2016/06/enlarged-board-publishes-decision-epo.html
This is also the only place where the words of the Enlarged Board of Appeal can be found, as the EPO neglected to publish it.
Basically, AT-ILO failed to actually revise the procedure in these decisions. Mr.Corcoran stays in legal limbo and Märpel does not have the faintest idea of what is supposed to happen next. Probably nothing.
The EPO did not publish anything about these decisions, but they published a glowing report on the next session (the 125th session, published in January) and especially about 2 further decisions also concerning Mr. Corcoran. The decisions can be found here:
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3961&p_language_code=EN
http://www.ilo.org/dyn/triblex/triblexmain.fullText?p_lang=en&p_judgment_no=3959&p_language_code=EN
Judgment 3961 concerns President Battistelli publication of the details of the pending proceedings against Mr. Corcoran in the EPO and in the press. AT-ILO finds that "the complainant has no right to request the initiation of an investigation against another staff member". The complaint is dismissed. Basically, the decision implies complete immunity of EPO officials: they cannot be fought in external tribunals and Judgment 3961 also makes it clear that they cannot be fought in the EPO internal justice system either.
Judgment 3959 concerns the confiscation of a private USB stick. AT-ILO finds the complaint to be irrecevable and cites earlier judgment 3958: "the process of decision-making involves a series of steps or findings which lead to a final decision. Those steps or findings do not constitute a decision, much less a final decision. They may be attacked as part of a challenge to the final decision but they themselves, cannot be the subject of a complaint to the Tribunal."
Märpel wonders what "final decision" is possible in the present case. The only disciplinary court for boards members is the Enlarged Board of Appeal and it already rendered an opinion and another is not planned. The Administrative Council was content in their December session that the matter had been settled. These judgments from January set the road free for AT-ILO to summarily dismiss whatever complaints may have been additionally filed, yet there is no indication that a decision on the substance of the case will ever be taken.
Friday, 11 May 2018
Pyrrhic victory
In the previous article, Märpel found out that Guido Raimondi, President of the European Court of Human Rights, finds that the way justice is administered at the EPO is no ground for action. As readers know, the EPO justice system is first based on an internal system for which President Battistelli uses his discretionary rights to reject cases as he sees fit followed by a revision procedure at the AT-ILO. It is quite important to note that AT-ILO is not an appeal court, but rather a "Revisionsgericht". It will not reopen proceedings, only check whether the regulations were correctly applied.
Märpel notes that the regulations allow the President of the EPO to decide as he so wishes, which seriously limits what can be revised.
Märpel further notes that a condition for revision is that the means of the internal procedure must be exhausted. Considering that the length of the internal procedure is in the hands of the EPO and that there is no recourse against an inordinately long procedure, this also seriously limits what can be revised.
Last but not least, Märpel notes that delays at AT-ILO can be so long so as to render the decision moot. So, it came as a surprise when AT-ILO published judgments 3958 and 3960 last December. The judgments concert Patrick Corcoran, the most prominent member of the boards of appeal at the EPO.
Except that Märpel wonders what would have happened if the judgments had been published just two weeks later. The consequence of the judgments 3958 and 3960 were simply that Mr. Corcoran was reinstated for 2 weeks. The blogs and the press celebrated a victory, because Mr. Corcoran was reinstated. But it was a pyrrhic victory and allowed President Battistelli to exercise retribution as soon as the press was moving on to the next news.
Märpel can only wonder what would have happened if the exact same decision had been given in the next session. Would AT-ILO have decided Mr. Corcoran to be reinstated in his former post and he would then still be at the boards? Would they rather have found out that his contract had run out so there was no possibility of redress? Then the scandal would have been much higher.
The timing of these decision changed everything. Cui bono?
The content of these and further decisions on the same case will be discussed in the next article.
Märpel notes that the regulations allow the President of the EPO to decide as he so wishes, which seriously limits what can be revised.
Märpel further notes that a condition for revision is that the means of the internal procedure must be exhausted. Considering that the length of the internal procedure is in the hands of the EPO and that there is no recourse against an inordinately long procedure, this also seriously limits what can be revised.
Last but not least, Märpel notes that delays at AT-ILO can be so long so as to render the decision moot. So, it came as a surprise when AT-ILO published judgments 3958 and 3960 last December. The judgments concert Patrick Corcoran, the most prominent member of the boards of appeal at the EPO.
Except that Märpel wonders what would have happened if the judgments had been published just two weeks later. The consequence of the judgments 3958 and 3960 were simply that Mr. Corcoran was reinstated for 2 weeks. The blogs and the press celebrated a victory, because Mr. Corcoran was reinstated. But it was a pyrrhic victory and allowed President Battistelli to exercise retribution as soon as the press was moving on to the next news.
Märpel can only wonder what would have happened if the exact same decision had been given in the next session. Would AT-ILO have decided Mr. Corcoran to be reinstated in his former post and he would then still be at the boards? Would they rather have found out that his contract had run out so there was no possibility of redress? Then the scandal would have been much higher.
The timing of these decision changed everything. Cui bono?
The content of these and further decisions on the same case will be discussed in the next article.
Wednesday, 2 May 2018
No human rights.
There is a very interesting article on the suepo website today. It is a translation from Guido Raimondi, President of the European Court of Human Rights. The text is below and can be downloaded here for SUEPO members:
https://suepo.org/documents/44839/57478.pdf
In summary, Guido Raimondi thinks that international organizations need their immunities. Too bad for their staff members.
Märpel found a reference to Guido Raimondi in an earlier SUEPO document, one about the symposium to mark the 90th anniversary of AT-ILO:
https://suepo.org/documents/44077/56254.pdf
There Märpel found:
"Only one of the presentations, by Mr Guido Raimondi, President of the European Court of Human Rights (ECHR), had a clear political message. Mr Raimondi stated that the ECHR had no standing over international organisations, and could only take complaints against their member states. Mentioning some of those complaints, all of which have the ECHR has chosen to reject, Mr Raimondi explained that the Court "exercises self-restraint" when it comes to international organisations. Complaints will be rejected if there is no proof of "manifest deficiency". According to Mr Raimondi it is enough if e.g. Art. 6 of the Convention ("right to a fair trial") is "grosso modo" respected by the organization: "the divergence must be flagrant" for the Court to act."
This message from the President of the European Court of Human Rights himself is of the utmost importance to the staff of the EPO as the European Court of Human Rights was perceived of the only way to reform a dysfunctional justice system: member states should not be able to create an organisation where basic human rights are not respected and access to a functional justice system is a basic human right. Märpel understands that there are pending cases involving the EPO at the European Court of Human Rights.
What Guido Raimondi basically said is that all these cases shall be lost. Human rights at the EPO are good enough or, more precisely, the need of international organizations for immunity and an independent justice system is more important than the breeches suffered by their staff.
SUEPO notes that Between May 2003 and May 2010, Guido Raimondi worked at the International Labour Office (ILO) as a Deputy Legal Adviser and Legal Adviser of the Organization. Doesn't this cast doubts on his independence and fairness? The article of Guido Raimondi on the case law of the European Court of Human Rights on international Civil Service law is below. English translation from SUEPO.
THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS ON INTERNATIONAL CIVIL SERVICE LAW
GUIDO RAIMONDI
President of the European Court of Human Rights since 1 November 2015.
The law of the international civil service has an importance that goes beyond the strict need to ensure a justice system for a group of people who otherwise, because of the immunity regime of the organizations that are theirs employers, would be deprived of it. Indeed, it is the justice system of the international public which makes that the international organizations, this fundamental component of the international relations of our time, may affirm to act in accordance with the rule of law. This justice system is therefore essential for the credibility, I would even say for the existence, of international organizations.
Let me emphasize this point because I am well aware that, from the perspective of the management of an international organization, one might sometimes be tempted to view this system as an obstacle to the effectiveness of the organization's action. I do not need to emphasize the dangerousness of such a notion in this article, and I therefore allow myself to express the wish that the awareness of the absolute necessity of fidelity to the rule of law be always present in the minds of the leaders of the organizations, which implies the duty - a duty that fully corresponds to the interest of the same organizations - to ensure that the internal justice systems have the best possible operating conditions.
My intervention aims to open a window on the case law of the European Court of Justice concerning the human rights law of international civil service law. In a system where the application of national law is in principle excluded, and whose main sources are the internal standards of the organizations as well as the relevant contracts, it is quite natural that the Tribunal's jurisprudence has given an important place to general principles in its jurisprudence.
As the Administrative Tribunal of the International Labour Organization (hereinafter the Tribunal or ILOAT) said, in particular in Judgment 1333, Franks and Vollering, of 1994 (para. 5), the law that the Tribunal applies when deciding on requests addressed to it does not only include the texts in force within the defendant organisation (to which we must obviously add contractual rules), but also the general principles of law and fundamental human rights1.
The Tribunal has sometimes referred to the 1948 Universal Declaration of Human Rights - as in Judgment 8482, Pilowsky, 1987 - and to the European Convention on Human Rights - as in Judgment 11443. It has been observed in doctrine that in both cases the Tribunal remained very cautious4.
With regard to the latter instrument, this caution is all the more understandable since the European Convention, which of course does not directly bind any of the organizations that benefit from the jurisdiction of the Tribunal, is precisely a regional instrument that is intended to apply on the European continent, whereas the jurisdiction of the Tribunal goes far beyond this territorial dimension. In any event, as the Tribunal stated in Judgment 2292, this Convention affirms certain general principles, such as the principle of non-discrimination and respect for the right to property, which are part of human rights and which, according to the jurisprudence of the Tribunal, apply to relations between the organizations which have recognized the jurisdiction of the Tribunal and their staff5. Having said that, it is only natural that the Court of First Instance should be "in tune" with the case-law of the Strasbourg Court, given the responsibilities of the European Court of Human Rights to ensure respect in Europe for the right of access to a court and the right to a fair trial. A right which may of course be limited to enable Contracting States to comply with their international obligations, in particular as regards immunity from the jurisdiction of international organisations, but provided that these rights are not nullified and certain guarantees are provided. That is why the Strasbourg Court cannot confine itself to finding that an immunity regime exists for an international organisation, but must verify in what way the rights of individuals who, because of the immunity regime do not have access to a national jurisdiction, are protected within the framework of the competent international justice system. As for the case law of this Court in the field of international administrative tribunals, it is scarce. However, a few principles emerge. First, it seems important to me to recall that, according to well-established case law, we do not recognise applications against international organisations, which, as I have just said, are not parties to the European Convention on Human Rights (ECHR). Applications against international organizations are therefore declared inadmissible ratione personae.
In addition, international organizations enjoy immunity from jurisdiction, usually under their General Agreement on Privileges and Immunities. This immunity has the effect of preventing litigants from complaining about the decisions of these entities before this Court. Thus, in the cases Waite and Kennedy v. Germany and Beer and Regan v. Germany (judgment of 18 February 1999), which concerned the actions of applicants claiming immunity from the jurisdiction of the European Space Agency, the Court recognised the indispensable nature of the immunity from jurisdiction of an international organisation, provided, however, that the restriction which it engenders was not disproportionate6. Thus, in the cases I have just cited, we were able to verify that the applicants had another way of protecting their rights. Let me explain: we fully accept the immunity of the international organization from jurisdiction, provided, however, that the applicant can benefit from an accessible alternative internal remedy.
I note, however, that our jurisprudence is nuanced and adapts to the circumstances, as we showed in the case of Stitching Mothers of Srebrenica v. the Netherlands (decision of 11 June 2013)7. In this case, we accepted immunity from the jurisdiction of the United Nations, despite the absence of domestic remedies. In this specific case, it seemed inappropriate to us to bring United Nations operations under the jurisdiction of national jurisdictions, because that would have allowed States to interfere in the accomplishment of the United Nations mission.
With regard to decisions rendered by the administrative tribunals of international organizations, it was in the Boivin case of 9 December 2008 that the Court ruled for the first time in its jurisdiction ratione personae in respect of a labour dispute8. The application had been brought against 34 member States of the Council of Europe and the applicant complained of an ILOAT judgment refusing an appointment; in short, a classic case. The application was examined only in respect of France and Belgium, as it was declared inadmissible for the other 32 Member States for failure to comply with the six-month time limit.
As regards France and Belgium, we considered that the applicant did not fall within the jurisdiction of those two States and concluded that the application was incompatible ratione personae. We have since reaffirmed this case law in cases involving labour disputes in other international organisations, be it the European Union or the Council of Europe9. In all these cases, whether the complaint is brought against more than one member State of an international organization, such as the Council of Europe, the International Criminal Tribunal for the former Yugoslavia or the International Criminal Tribunal for the former Yugoslavia, the Europe or the ILO, or whether it is directed against the host State of the organization, we come to a comparable conclusion. It is clear, from our point of view, that the contested decisions fall within the internal legal order of the organization in question and that the territorial link is not sufficient for the acts of the administrative tribunal of the organization to be attributable to the host State.
However, we went further in Gasparini v. Italy and Belgium10 (decision of 12 May 2009), in which we accepted that an internal labour dispute of an international organization could engage the responsibility of its Member States. The organisation in question was NATO and the procedure concerned its Appeals Board. In this case, the applicant complained of a structural flaw in NATO's internal mechanism. We reviewed this internal settlement mechanism and concluded that it was not manifestly inadequate as long as it met the requirements of a fair procedure. Should this not be the case, and this reminds us of the method adopted for the European Union in the Bosphorus judgment, the responsibility of the organization's member States could have been engaged11. It would furthermore be necessary that the contradiction between the appeal system set up within the organization in question and the Convention be egregious. This was not the case here, but we did verify that the rights guaranteed by the Convention received equivalent protection within NATO.
I would now like to take a closer look at two recent cases, namely Perez v. Germany, decision of 6 January 2015, and Klausecker v. Germany, decided by a decision of the same day.
In Perez v. Germany, the Court was once again called upon to consider the conventionality of a mechanism for settling labour disputes internal to an international organization12. In this case, the applicant was a former employee of the United Nations Volunteers Programme (UNV), a subsidiary body of the United Nations with headquarters in Bonn, Germany. Following a poor evaluation by her superiors, she was asked to seek a new position within the UN. Failing to find one, she was dismissed on 3 December 2002 as part of a massive wave of job cuts. She unsuccessfully appealed her decision to the United Nations Administrative Tribunal (UNAT). In particular, the applicant requested her reinstatement, payment of salaries not received since her dismissal and finally access to certain documents submitted by her former employer to the bodies examining her appeals. In 2007, UNAT awarded her compensation equivalent to three months' salary and dismissed the rest of the claim. Before the Strasbourg Court, the plaintiff complained both of the violation of the right to a court because of the immunity from jurisdiction granted by the German courts to international organisations and of the shortcomings of the UN's internal dispute settlement mechanisms.
These two grievances correspond in fact to the two routes already taken in the past (most often alternately) by applicants in more or less comparable situations. Some of them chose to invoke the responsibility of the State in which the organization had its headquarters, inasmuch as their domestic courts had refused to hear the dispute between them and the organization that employed them, because of the rule of immunity from jurisdiction of international organizations. Other applicants have instead chosen to invoke the responsibility of one or more Member States of the international organization, because of the shortcomings of the domestic dispute settlement mechanism with regard to the requirements of the right to a fair trial. In either case, however, it must be admitted that the applicants have so far found it difficult to obtain satisfaction, since the Strasbourg Court's case law is largely self-contained in this area. This trend was confirmed by this case, which was finally declared inadmissible.
First of all, as regards the violation of the right to a court on account of the recognition by the German judges of the immunity from jurisdiction of the organisation to which it was opposed, the applicant could hardly have had much hope. While the Strasbourg Court has not hesitated in the past to accept the principle of scrutiny of international immunities insofar as they could constitute an obstacle to the right of access to the courts guaranteed by Article 6, paragraph 1, of the ECHR, it has always been extremely measured as regards the intensity of its scrutiny: "interpreting restrictively the concept of "right to a court", it is [thus] satisfied that the alternative remedy offered by the Organisation broadly complies with the requirements of Article 6 of the Convention"13.
In this case, the European Court did not even need to review the quality of appeals within the UN. Indeed, the applicant had failed to bring its complaint before the Karlsruhe Court, even though that action could be regarded as 'effective'. Consequently, this first part of the application is declared inadmissible for failure to exhaust prior remedies.
The second part of the request appears more instructive. First of all, the Court recalls its classic case law: because of the international organisation's own legal personality, the shortcomings of its internal justice system cannot in principle be attributed to its Member States. This means "that a complaint concerning shortcomings in the Organization's internal procedures with regard to the requirements of a fair trial comes up against a finding of incompatibility ratione personae with the Convention if the applicant does not demonstrate that the State intervened, directly or indirectly, in the dispute or that the level of protection of human rights within the international organization is not 'equivalent' to that offered by the Convention" in application of the case law Bosphorus v. Ireland14. On the other hand, State intervention or lack of equivalence authorises the European Court to judge the conformity of internal settlement mechanisms in the light of the standards of the Convention, in particular Article 6.
However, the control exercised by the Court at that time remains relatively summary, since it is sufficient, in accordance with the principles of the Bosphorus jurisprudence, that the internal procedure of the Organization does not suffer from "manifest shortcomings"15. This explains the inadmissibility rationae personae of several past applications, either because the applicant does not question a structural shortcoming in the protection of human rights (as in the Boivin v. 34 member States of the Council of Europe case which I referred to a moment ago16), or because he did not succeed in demonstrating that the procedure was vitiated by a "manifest insufficiency" (as in the Gasparini v. Italy and Belgium case which I also cited17).
In the present case, the complainant could have hoped that her complaint would be upheld inasmuch as she alleged a number of violations of the right to a fair trial: failure to respect the equality of arms because her employer had not transmitted documents to the judges so that they could form an opinion, impossibility of being heard, lack of full jurisdiction of the United Nations Administrative Tribunal (UNAT) and lack of impartiality and independence of the members of the Tribunal owing to their short and renewable term of office.
Moreover, the European Court observes from the outset that there is strong evidence to suggest that the applicant has made substantiated allegations concerning the existence of manifest failures. She also notes that, in the past, a group of independent experts had confirmed that the internal justice system of the United Nations in place at the time had shortcomings and had therefore proposed improvements18. These recommendations were quickly followed by action, as in 2008 the United Nations General Assembly finalized the overhaul of the system by adopting the statutes of the two new United Nations judicial bodies: the United Nations Dispute Tribunal and the United Nations Appeals Tribunal19.
However, the Court will not decide whether Germany should be held liable for the alleged deficiencies, since it finds that the applicant, here again, has not exhausted domestic remedies. In reaching this conclusion, the Court reiterated the German argument that a constitutional remedy constituted an "effective remedy" to be exhausted. Several decisions of the Karlsruhe Court show that - despite the immunity of international organisations from jurisdiction before German courts - it admits its competence to verify whether the level of protection of fundamental rights in employment disputes within international organisations complies with the requirements of the Basic Law. This competence is certainly only exercised under strict conditions. Thus, the plaintiff must demonstrate that the contested act has a concrete effect within the German legal system, which could be the case for the dismissal of Ms Perez. Furthermore, the complainant must substantiate his allegations that the level of protection of fundamental rights by the organization concerned is manifestly lower than the level required by the Constitution, which again corresponded to Ms. Perez's allegations. Consequently, even if Germany did not put forward any example of decisions favourable to an individual, the Strasbourg Court considered that the direct appeal before the Constitutional Court was not deprived of any chance of success and should therefore be exhausted. A contrario, one could always "consider what the Court would have done if the question of exhaustion of remedies had not arisen. In any event, the scope of a finding of infringement of Article 6 - without diminishing its importance for individual applicants - would have been less in so far as the system to which the case related is now a thing of the past", as Professor Tavernier points out20.
In a neighbouring register, the Klausecker case did not lead to a much happier solution for the applicant21. In this case, he had been disabled since the age of 18 as a result of an accident that caused him to lose one eye, one hand and part of the fingers of the other hand. Having graduated with a degree in mechanical engineering, he worked as a research assistant at a university. After applying to work at the European Patent Office in Munich and passing the examinations to become a patent examiner there, he was not admitted to the post in 2005 on the grounds that he was not physically fit. He lodged an appeal against this decision with the European Patent Office and then with the Administrative Tribunal of the International Labour Organisation, which were rejected in 2005 and 2007 respectively in so far as candidates for a post are not entitled to lodge appeals of this type. Since the European Patent Organisation (EPO, of which the European Patent Office is a member) enjoys immunity from jurisdiction before the German civil and labour courts, the person concerned brought the case directly before the Constitutional Court, which, in 2006, ruled that his appeal was inadmissible and declared that it lacked jurisdiction to judge it. Subsequently, the European Patent Office proposed to the applicant to have the dispute decided by an arbitral tribunal, an option it refused in 2008 on the ground that this procedure would infringe essential procedural guarantees, in particular the right to a public hearing within a reasonable time. The applicant then brought the case before the Strasbourg Court on the basis of Article 6(1) of the ECHR.
As regards the lack of access to German courts, the Court finds, first of all, that granting the EPO immunity from jurisdiction before the German courts was intended to ensure the proper functioning of that international organisation and thus pursued a "legitimate aim". In determining whether limiting the applicant's access to German courts was proportionate to that objective, the Court considers it decisive to determine "whether there was any other reasonable means of effectively protecting his rights under the Convention". However, it considers that the applicant did have another means at his disposal, since he had been offered participation in arbitration proceedings. The Court notes in particular that, under the arbitration contract proposed by the EPO, the arbitrators would have decided the dispute on the basis of the rules which the ILO Administrative Tribunal would have applied had it been competent. In its view, the mere non-public nature of the hearing before the arbitral tribunal - where the parties could be represented by counsel - did not make the arbitration procedure a "poor substitute for proceedings before a national court".
Since the applicant had another reasonable way to protect his rights under the ECHR, the limitation of his access to the German courts was proportionate; this first part of the application is therefore rejected for manifest lack of foundation.
Turning then to the complaint concerning a lack of access to the procedures of the European Patent Office and the ILO Administrative Court and the shortcomings of those procedures, the Court notes that, in the light of its traditional case-law, Germany could be held liable in the present case only if the protection of fundamental rights offered by the EPO to the applicant had been "manifestly deficient". However, by offering Mr. Klausecker to participate in an arbitration procedure, the EPO had provided him with another reasonable means of having his complaint examined on the merits. Consequently, the Strasbourg Court considers that the protection of fundamental rights within the EPO has not "manifestly failed" in this case and therefore also declares inadmissible the second part of the application.
This quick review of the case law of the European Court of Human Rights shows that in principle two avenues are open to those who are not satisfied with the internal justice systems of international organisations. On the one hand, one may choose to invoke the responsibility of the State in which the organization has its headquarters, in so far as the domestic courts of that State have refused to hear the dispute between the person concerned and the organization employing him, because of the rule of immunity from jurisdiction of international organizations.
On the other hand, the responsibility of one or more member States of the international organization may be invoked because of the shortcomings of the domestic dispute settlement mechanism with regard to the requirements of the European Convention on Human Rights, in particular its article 6.
We have seen that so far, in both cases, the European Court of Human Rights has exercised to the highest degree an attitude of self-restraint. What about this attitude? We know that a certain part of the doctrine is quite critical of this jurisprudence, which is considered not sufficiently protective of the fundamental rights of international civil service workers. For my part, I tend to believe that the independence of international organisations is such an essential value for these organisations to be able to carry out their respective missions, which are so important for the well-being of humanity and, ultimately, for the safeguarding of peace, that the Strasbourg Court only recognises its true value.
Moreover, the Strasbourg Court's case law has the flexibility and capacity to adapt sufficiently to deal with possible abuses by the domestic courts of international organisations. I believe that this is very much in the spirit of these courts, which, as I said, remain attentive to the case law of the European Court of Human Rights. I dare to think that the ILO Administrative Tribunal will continue to pay attention to this case law, which can only be beneficial for its mission of ensuring the rule of law in organizations that have recognized its jurisdiction and that, as I said at the beginning of my speech, have a duty not only to respect the decisions of the Tribunal, but also to be constantly concerned that the conditions so that it can work effectively and fully independently are always met.
1 Judgment 1333 (1994), consid. 5
2 For instance in Judgment 848 (1987)
3 For instance in Judgment 1144 (1992)
4 Laurent Germond, Les principles généraux selon le Tribunal administrative de l'O.I.T. (Paris, Pedone, 2009). 5 Judgment 2292 (2004), consid. 11
6 Beer and Reagan vs Germany, no. 28934/95, 18 Feb. 1999, Waite and Kennedy vs. Germany, no. 26083/94, 18 Feb. 1999, ECHR 1999-1.
7 Stitching Mothers of Srebenica and others vs. The Netherlands, no. 65542/12, ECHR 2013.
8 Bovin vs. 34 States of the Council of Europe, no. 73250/01, ECHR 2008.
9 For instance, concerning the Council of Europe, in the decision of 16 June 2009, Beygo vs. 46 States of the Council of Europe.
10 Gasparini vs. Italy and Belgium, no. 10750/03, 12 May 2009.
11 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi vs Irelan, no. 45036/98, ECHR 2005-VI.
12 Perez vs Germany, no. 15521/08, 6 Jan. 2015.
13 Julie Tavernier, Le mécanisme de règlement des litiges du travail interne à l'ONU devant la Cour européenne des droits de l'homme, Bulletin no. 421, of 08/02/2015, available at the address <sentinelle-droit- international.fr> (consulted 18 Aug. 2017).
14 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi vs Irelan, no 45036/98, ECHR 2005-VI. 15 Ibid.
16 Bovin vs. 34 States of the Council of Europe, no. 73250/01, ECHR 2008.
17 Gasparini vs. Italy and Belgium, no. 10750/03, 12 May 2009.
18 www.un.org/ga/president/62/issues/resolutions/a-61-205.pdf
19 AGNU Res 61/261 (4 April 2007), UN Doc A/RES/61/261; AGNU Res 62/228 (22 Dec. 2007, UN Doc A/RES/61/261; AGNU Res 63/253 (24 Dec. 2008), UN Doc A/RES/63/253.
20 Julie Tavernier, Le mécanisme de règlement des litiges du travail interne à l'ONU devant la Cour européenne des droits de l'homme, Bulletin no. 421, of 08/02/2015, available at the address <sentinelle-droit- international.fr> (consulted 18 Aug. 2017).
21 Klausecker vs Germany, no. 15521/08, 6 Jan. 2015.
https://suepo.org/documents/44839/57478.pdf
In summary, Guido Raimondi thinks that international organizations need their immunities. Too bad for their staff members.
Märpel found a reference to Guido Raimondi in an earlier SUEPO document, one about the symposium to mark the 90th anniversary of AT-ILO:
https://suepo.org/documents/44077/56254.pdf
There Märpel found:
"Only one of the presentations, by Mr Guido Raimondi, President of the European Court of Human Rights (ECHR), had a clear political message. Mr Raimondi stated that the ECHR had no standing over international organisations, and could only take complaints against their member states. Mentioning some of those complaints, all of which have the ECHR has chosen to reject, Mr Raimondi explained that the Court "exercises self-restraint" when it comes to international organisations. Complaints will be rejected if there is no proof of "manifest deficiency". According to Mr Raimondi it is enough if e.g. Art. 6 of the Convention ("right to a fair trial") is "grosso modo" respected by the organization: "the divergence must be flagrant" for the Court to act."
This message from the President of the European Court of Human Rights himself is of the utmost importance to the staff of the EPO as the European Court of Human Rights was perceived of the only way to reform a dysfunctional justice system: member states should not be able to create an organisation where basic human rights are not respected and access to a functional justice system is a basic human right. Märpel understands that there are pending cases involving the EPO at the European Court of Human Rights.
What Guido Raimondi basically said is that all these cases shall be lost. Human rights at the EPO are good enough or, more precisely, the need of international organizations for immunity and an independent justice system is more important than the breeches suffered by their staff.
SUEPO notes that Between May 2003 and May 2010, Guido Raimondi worked at the International Labour Office (ILO) as a Deputy Legal Adviser and Legal Adviser of the Organization. Doesn't this cast doubts on his independence and fairness? The article of Guido Raimondi on the case law of the European Court of Human Rights on international Civil Service law is below. English translation from SUEPO.
THE CASE LAW OF THE EUROPEAN COURT OF HUMAN RIGHTS ON INTERNATIONAL CIVIL SERVICE LAW
GUIDO RAIMONDI
President of the European Court of Human Rights since 1 November 2015.
The law of the international civil service has an importance that goes beyond the strict need to ensure a justice system for a group of people who otherwise, because of the immunity regime of the organizations that are theirs employers, would be deprived of it. Indeed, it is the justice system of the international public which makes that the international organizations, this fundamental component of the international relations of our time, may affirm to act in accordance with the rule of law. This justice system is therefore essential for the credibility, I would even say for the existence, of international organizations.
Let me emphasize this point because I am well aware that, from the perspective of the management of an international organization, one might sometimes be tempted to view this system as an obstacle to the effectiveness of the organization's action. I do not need to emphasize the dangerousness of such a notion in this article, and I therefore allow myself to express the wish that the awareness of the absolute necessity of fidelity to the rule of law be always present in the minds of the leaders of the organizations, which implies the duty - a duty that fully corresponds to the interest of the same organizations - to ensure that the internal justice systems have the best possible operating conditions.
My intervention aims to open a window on the case law of the European Court of Justice concerning the human rights law of international civil service law. In a system where the application of national law is in principle excluded, and whose main sources are the internal standards of the organizations as well as the relevant contracts, it is quite natural that the Tribunal's jurisprudence has given an important place to general principles in its jurisprudence.
As the Administrative Tribunal of the International Labour Organization (hereinafter the Tribunal or ILOAT) said, in particular in Judgment 1333, Franks and Vollering, of 1994 (para. 5), the law that the Tribunal applies when deciding on requests addressed to it does not only include the texts in force within the defendant organisation (to which we must obviously add contractual rules), but also the general principles of law and fundamental human rights1.
The Tribunal has sometimes referred to the 1948 Universal Declaration of Human Rights - as in Judgment 8482, Pilowsky, 1987 - and to the European Convention on Human Rights - as in Judgment 11443. It has been observed in doctrine that in both cases the Tribunal remained very cautious4.
With regard to the latter instrument, this caution is all the more understandable since the European Convention, which of course does not directly bind any of the organizations that benefit from the jurisdiction of the Tribunal, is precisely a regional instrument that is intended to apply on the European continent, whereas the jurisdiction of the Tribunal goes far beyond this territorial dimension. In any event, as the Tribunal stated in Judgment 2292, this Convention affirms certain general principles, such as the principle of non-discrimination and respect for the right to property, which are part of human rights and which, according to the jurisprudence of the Tribunal, apply to relations between the organizations which have recognized the jurisdiction of the Tribunal and their staff5. Having said that, it is only natural that the Court of First Instance should be "in tune" with the case-law of the Strasbourg Court, given the responsibilities of the European Court of Human Rights to ensure respect in Europe for the right of access to a court and the right to a fair trial. A right which may of course be limited to enable Contracting States to comply with their international obligations, in particular as regards immunity from the jurisdiction of international organisations, but provided that these rights are not nullified and certain guarantees are provided. That is why the Strasbourg Court cannot confine itself to finding that an immunity regime exists for an international organisation, but must verify in what way the rights of individuals who, because of the immunity regime do not have access to a national jurisdiction, are protected within the framework of the competent international justice system. As for the case law of this Court in the field of international administrative tribunals, it is scarce. However, a few principles emerge. First, it seems important to me to recall that, according to well-established case law, we do not recognise applications against international organisations, which, as I have just said, are not parties to the European Convention on Human Rights (ECHR). Applications against international organizations are therefore declared inadmissible ratione personae.
In addition, international organizations enjoy immunity from jurisdiction, usually under their General Agreement on Privileges and Immunities. This immunity has the effect of preventing litigants from complaining about the decisions of these entities before this Court. Thus, in the cases Waite and Kennedy v. Germany and Beer and Regan v. Germany (judgment of 18 February 1999), which concerned the actions of applicants claiming immunity from the jurisdiction of the European Space Agency, the Court recognised the indispensable nature of the immunity from jurisdiction of an international organisation, provided, however, that the restriction which it engenders was not disproportionate6. Thus, in the cases I have just cited, we were able to verify that the applicants had another way of protecting their rights. Let me explain: we fully accept the immunity of the international organization from jurisdiction, provided, however, that the applicant can benefit from an accessible alternative internal remedy.
I note, however, that our jurisprudence is nuanced and adapts to the circumstances, as we showed in the case of Stitching Mothers of Srebrenica v. the Netherlands (decision of 11 June 2013)7. In this case, we accepted immunity from the jurisdiction of the United Nations, despite the absence of domestic remedies. In this specific case, it seemed inappropriate to us to bring United Nations operations under the jurisdiction of national jurisdictions, because that would have allowed States to interfere in the accomplishment of the United Nations mission.
With regard to decisions rendered by the administrative tribunals of international organizations, it was in the Boivin case of 9 December 2008 that the Court ruled for the first time in its jurisdiction ratione personae in respect of a labour dispute8. The application had been brought against 34 member States of the Council of Europe and the applicant complained of an ILOAT judgment refusing an appointment; in short, a classic case. The application was examined only in respect of France and Belgium, as it was declared inadmissible for the other 32 Member States for failure to comply with the six-month time limit.
As regards France and Belgium, we considered that the applicant did not fall within the jurisdiction of those two States and concluded that the application was incompatible ratione personae. We have since reaffirmed this case law in cases involving labour disputes in other international organisations, be it the European Union or the Council of Europe9. In all these cases, whether the complaint is brought against more than one member State of an international organization, such as the Council of Europe, the International Criminal Tribunal for the former Yugoslavia or the International Criminal Tribunal for the former Yugoslavia, the Europe or the ILO, or whether it is directed against the host State of the organization, we come to a comparable conclusion. It is clear, from our point of view, that the contested decisions fall within the internal legal order of the organization in question and that the territorial link is not sufficient for the acts of the administrative tribunal of the organization to be attributable to the host State.
However, we went further in Gasparini v. Italy and Belgium10 (decision of 12 May 2009), in which we accepted that an internal labour dispute of an international organization could engage the responsibility of its Member States. The organisation in question was NATO and the procedure concerned its Appeals Board. In this case, the applicant complained of a structural flaw in NATO's internal mechanism. We reviewed this internal settlement mechanism and concluded that it was not manifestly inadequate as long as it met the requirements of a fair procedure. Should this not be the case, and this reminds us of the method adopted for the European Union in the Bosphorus judgment, the responsibility of the organization's member States could have been engaged11. It would furthermore be necessary that the contradiction between the appeal system set up within the organization in question and the Convention be egregious. This was not the case here, but we did verify that the rights guaranteed by the Convention received equivalent protection within NATO.
I would now like to take a closer look at two recent cases, namely Perez v. Germany, decision of 6 January 2015, and Klausecker v. Germany, decided by a decision of the same day.
In Perez v. Germany, the Court was once again called upon to consider the conventionality of a mechanism for settling labour disputes internal to an international organization12. In this case, the applicant was a former employee of the United Nations Volunteers Programme (UNV), a subsidiary body of the United Nations with headquarters in Bonn, Germany. Following a poor evaluation by her superiors, she was asked to seek a new position within the UN. Failing to find one, she was dismissed on 3 December 2002 as part of a massive wave of job cuts. She unsuccessfully appealed her decision to the United Nations Administrative Tribunal (UNAT). In particular, the applicant requested her reinstatement, payment of salaries not received since her dismissal and finally access to certain documents submitted by her former employer to the bodies examining her appeals. In 2007, UNAT awarded her compensation equivalent to three months' salary and dismissed the rest of the claim. Before the Strasbourg Court, the plaintiff complained both of the violation of the right to a court because of the immunity from jurisdiction granted by the German courts to international organisations and of the shortcomings of the UN's internal dispute settlement mechanisms.
These two grievances correspond in fact to the two routes already taken in the past (most often alternately) by applicants in more or less comparable situations. Some of them chose to invoke the responsibility of the State in which the organization had its headquarters, inasmuch as their domestic courts had refused to hear the dispute between them and the organization that employed them, because of the rule of immunity from jurisdiction of international organizations. Other applicants have instead chosen to invoke the responsibility of one or more Member States of the international organization, because of the shortcomings of the domestic dispute settlement mechanism with regard to the requirements of the right to a fair trial. In either case, however, it must be admitted that the applicants have so far found it difficult to obtain satisfaction, since the Strasbourg Court's case law is largely self-contained in this area. This trend was confirmed by this case, which was finally declared inadmissible.
First of all, as regards the violation of the right to a court on account of the recognition by the German judges of the immunity from jurisdiction of the organisation to which it was opposed, the applicant could hardly have had much hope. While the Strasbourg Court has not hesitated in the past to accept the principle of scrutiny of international immunities insofar as they could constitute an obstacle to the right of access to the courts guaranteed by Article 6, paragraph 1, of the ECHR, it has always been extremely measured as regards the intensity of its scrutiny: "interpreting restrictively the concept of "right to a court", it is [thus] satisfied that the alternative remedy offered by the Organisation broadly complies with the requirements of Article 6 of the Convention"13.
In this case, the European Court did not even need to review the quality of appeals within the UN. Indeed, the applicant had failed to bring its complaint before the Karlsruhe Court, even though that action could be regarded as 'effective'. Consequently, this first part of the application is declared inadmissible for failure to exhaust prior remedies.
The second part of the request appears more instructive. First of all, the Court recalls its classic case law: because of the international organisation's own legal personality, the shortcomings of its internal justice system cannot in principle be attributed to its Member States. This means "that a complaint concerning shortcomings in the Organization's internal procedures with regard to the requirements of a fair trial comes up against a finding of incompatibility ratione personae with the Convention if the applicant does not demonstrate that the State intervened, directly or indirectly, in the dispute or that the level of protection of human rights within the international organization is not 'equivalent' to that offered by the Convention" in application of the case law Bosphorus v. Ireland14. On the other hand, State intervention or lack of equivalence authorises the European Court to judge the conformity of internal settlement mechanisms in the light of the standards of the Convention, in particular Article 6.
However, the control exercised by the Court at that time remains relatively summary, since it is sufficient, in accordance with the principles of the Bosphorus jurisprudence, that the internal procedure of the Organization does not suffer from "manifest shortcomings"15. This explains the inadmissibility rationae personae of several past applications, either because the applicant does not question a structural shortcoming in the protection of human rights (as in the Boivin v. 34 member States of the Council of Europe case which I referred to a moment ago16), or because he did not succeed in demonstrating that the procedure was vitiated by a "manifest insufficiency" (as in the Gasparini v. Italy and Belgium case which I also cited17).
In the present case, the complainant could have hoped that her complaint would be upheld inasmuch as she alleged a number of violations of the right to a fair trial: failure to respect the equality of arms because her employer had not transmitted documents to the judges so that they could form an opinion, impossibility of being heard, lack of full jurisdiction of the United Nations Administrative Tribunal (UNAT) and lack of impartiality and independence of the members of the Tribunal owing to their short and renewable term of office.
Moreover, the European Court observes from the outset that there is strong evidence to suggest that the applicant has made substantiated allegations concerning the existence of manifest failures. She also notes that, in the past, a group of independent experts had confirmed that the internal justice system of the United Nations in place at the time had shortcomings and had therefore proposed improvements18. These recommendations were quickly followed by action, as in 2008 the United Nations General Assembly finalized the overhaul of the system by adopting the statutes of the two new United Nations judicial bodies: the United Nations Dispute Tribunal and the United Nations Appeals Tribunal19.
However, the Court will not decide whether Germany should be held liable for the alleged deficiencies, since it finds that the applicant, here again, has not exhausted domestic remedies. In reaching this conclusion, the Court reiterated the German argument that a constitutional remedy constituted an "effective remedy" to be exhausted. Several decisions of the Karlsruhe Court show that - despite the immunity of international organisations from jurisdiction before German courts - it admits its competence to verify whether the level of protection of fundamental rights in employment disputes within international organisations complies with the requirements of the Basic Law. This competence is certainly only exercised under strict conditions. Thus, the plaintiff must demonstrate that the contested act has a concrete effect within the German legal system, which could be the case for the dismissal of Ms Perez. Furthermore, the complainant must substantiate his allegations that the level of protection of fundamental rights by the organization concerned is manifestly lower than the level required by the Constitution, which again corresponded to Ms. Perez's allegations. Consequently, even if Germany did not put forward any example of decisions favourable to an individual, the Strasbourg Court considered that the direct appeal before the Constitutional Court was not deprived of any chance of success and should therefore be exhausted. A contrario, one could always "consider what the Court would have done if the question of exhaustion of remedies had not arisen. In any event, the scope of a finding of infringement of Article 6 - without diminishing its importance for individual applicants - would have been less in so far as the system to which the case related is now a thing of the past", as Professor Tavernier points out20.
In a neighbouring register, the Klausecker case did not lead to a much happier solution for the applicant21. In this case, he had been disabled since the age of 18 as a result of an accident that caused him to lose one eye, one hand and part of the fingers of the other hand. Having graduated with a degree in mechanical engineering, he worked as a research assistant at a university. After applying to work at the European Patent Office in Munich and passing the examinations to become a patent examiner there, he was not admitted to the post in 2005 on the grounds that he was not physically fit. He lodged an appeal against this decision with the European Patent Office and then with the Administrative Tribunal of the International Labour Organisation, which were rejected in 2005 and 2007 respectively in so far as candidates for a post are not entitled to lodge appeals of this type. Since the European Patent Organisation (EPO, of which the European Patent Office is a member) enjoys immunity from jurisdiction before the German civil and labour courts, the person concerned brought the case directly before the Constitutional Court, which, in 2006, ruled that his appeal was inadmissible and declared that it lacked jurisdiction to judge it. Subsequently, the European Patent Office proposed to the applicant to have the dispute decided by an arbitral tribunal, an option it refused in 2008 on the ground that this procedure would infringe essential procedural guarantees, in particular the right to a public hearing within a reasonable time. The applicant then brought the case before the Strasbourg Court on the basis of Article 6(1) of the ECHR.
As regards the lack of access to German courts, the Court finds, first of all, that granting the EPO immunity from jurisdiction before the German courts was intended to ensure the proper functioning of that international organisation and thus pursued a "legitimate aim". In determining whether limiting the applicant's access to German courts was proportionate to that objective, the Court considers it decisive to determine "whether there was any other reasonable means of effectively protecting his rights under the Convention". However, it considers that the applicant did have another means at his disposal, since he had been offered participation in arbitration proceedings. The Court notes in particular that, under the arbitration contract proposed by the EPO, the arbitrators would have decided the dispute on the basis of the rules which the ILO Administrative Tribunal would have applied had it been competent. In its view, the mere non-public nature of the hearing before the arbitral tribunal - where the parties could be represented by counsel - did not make the arbitration procedure a "poor substitute for proceedings before a national court".
Since the applicant had another reasonable way to protect his rights under the ECHR, the limitation of his access to the German courts was proportionate; this first part of the application is therefore rejected for manifest lack of foundation.
Turning then to the complaint concerning a lack of access to the procedures of the European Patent Office and the ILO Administrative Court and the shortcomings of those procedures, the Court notes that, in the light of its traditional case-law, Germany could be held liable in the present case only if the protection of fundamental rights offered by the EPO to the applicant had been "manifestly deficient". However, by offering Mr. Klausecker to participate in an arbitration procedure, the EPO had provided him with another reasonable means of having his complaint examined on the merits. Consequently, the Strasbourg Court considers that the protection of fundamental rights within the EPO has not "manifestly failed" in this case and therefore also declares inadmissible the second part of the application.
This quick review of the case law of the European Court of Human Rights shows that in principle two avenues are open to those who are not satisfied with the internal justice systems of international organisations. On the one hand, one may choose to invoke the responsibility of the State in which the organization has its headquarters, in so far as the domestic courts of that State have refused to hear the dispute between the person concerned and the organization employing him, because of the rule of immunity from jurisdiction of international organizations.
On the other hand, the responsibility of one or more member States of the international organization may be invoked because of the shortcomings of the domestic dispute settlement mechanism with regard to the requirements of the European Convention on Human Rights, in particular its article 6.
We have seen that so far, in both cases, the European Court of Human Rights has exercised to the highest degree an attitude of self-restraint. What about this attitude? We know that a certain part of the doctrine is quite critical of this jurisprudence, which is considered not sufficiently protective of the fundamental rights of international civil service workers. For my part, I tend to believe that the independence of international organisations is such an essential value for these organisations to be able to carry out their respective missions, which are so important for the well-being of humanity and, ultimately, for the safeguarding of peace, that the Strasbourg Court only recognises its true value.
Moreover, the Strasbourg Court's case law has the flexibility and capacity to adapt sufficiently to deal with possible abuses by the domestic courts of international organisations. I believe that this is very much in the spirit of these courts, which, as I said, remain attentive to the case law of the European Court of Human Rights. I dare to think that the ILO Administrative Tribunal will continue to pay attention to this case law, which can only be beneficial for its mission of ensuring the rule of law in organizations that have recognized its jurisdiction and that, as I said at the beginning of my speech, have a duty not only to respect the decisions of the Tribunal, but also to be constantly concerned that the conditions so that it can work effectively and fully independently are always met.
1 Judgment 1333 (1994), consid. 5
2 For instance in Judgment 848 (1987)
3 For instance in Judgment 1144 (1992)
4 Laurent Germond, Les principles généraux selon le Tribunal administrative de l'O.I.T. (Paris, Pedone, 2009). 5 Judgment 2292 (2004), consid. 11
6 Beer and Reagan vs Germany, no. 28934/95, 18 Feb. 1999, Waite and Kennedy vs. Germany, no. 26083/94, 18 Feb. 1999, ECHR 1999-1.
7 Stitching Mothers of Srebenica and others vs. The Netherlands, no. 65542/12, ECHR 2013.
8 Bovin vs. 34 States of the Council of Europe, no. 73250/01, ECHR 2008.
9 For instance, concerning the Council of Europe, in the decision of 16 June 2009, Beygo vs. 46 States of the Council of Europe.
10 Gasparini vs. Italy and Belgium, no. 10750/03, 12 May 2009.
11 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi vs Irelan, no. 45036/98, ECHR 2005-VI.
12 Perez vs Germany, no. 15521/08, 6 Jan. 2015.
13 Julie Tavernier, Le mécanisme de règlement des litiges du travail interne à l'ONU devant la Cour européenne des droits de l'homme, Bulletin no. 421, of 08/02/2015, available at the address <sentinelle-droit- international.fr> (consulted 18 Aug. 2017).
14 Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi vs Irelan, no 45036/98, ECHR 2005-VI. 15 Ibid.
16 Bovin vs. 34 States of the Council of Europe, no. 73250/01, ECHR 2008.
17 Gasparini vs. Italy and Belgium, no. 10750/03, 12 May 2009.
18 www.un.org/ga/president/62/issues/resolutions/a-61-205.pdf
19 AGNU Res 61/261 (4 April 2007), UN Doc A/RES/61/261; AGNU Res 62/228 (22 Dec. 2007, UN Doc A/RES/61/261; AGNU Res 63/253 (24 Dec. 2008), UN Doc A/RES/63/253.
20 Julie Tavernier, Le mécanisme de règlement des litiges du travail interne à l'ONU devant la Cour européenne des droits de l'homme, Bulletin no. 421, of 08/02/2015, available at the address <sentinelle-droit- international.fr> (consulted 18 Aug. 2017).
21 Klausecker vs Germany, no. 15521/08, 6 Jan. 2015.
Tuesday, 1 May 2018
Floating in a legal vacuum
It was brought to the attention of Märpel that the last cited document is not the first one to criticise AT-ILO. There was an interview with Dr. Matthew Parish in 2011:
Floating in a legal vacuum
„How can it be that while states are individually obliged to respect fundamental human rights, they can jointly create international institutions that are entitled to ignore them?"
It can be downloaded here: https://suepo.org/documents/42931/54338.pdf and is well worth a read.
Märpel also notes that no less than TWO papers were published about the same subject on the suepo web site yesterday:
Cicero Magazin: Wo kein Richter...
https://suepo.org/documents/44838/57475.pdf
Revisiting the legal basis to deny international civil servants access to a fundamental right
https://suepo.org/documents/44837/57474.pdf
...a legal vacuum lasting for years.
Floating in a legal vacuum
„How can it be that while states are individually obliged to respect fundamental human rights, they can jointly create international institutions that are entitled to ignore them?"
It can be downloaded here: https://suepo.org/documents/42931/54338.pdf and is well worth a read.
Märpel also notes that no less than TWO papers were published about the same subject on the suepo web site yesterday:
Cicero Magazin: Wo kein Richter...
https://suepo.org/documents/44838/57475.pdf
Revisiting the legal basis to deny international civil servants access to a fundamental right
https://suepo.org/documents/44837/57474.pdf
...a legal vacuum lasting for years.
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